Cyrus Mehta

State Department’s Change To Public Charge Guidance In Foreign Affairs Manual Will Result in Many More Visa Refusals

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The Trump Administration has opened another front in its war on legal immigration to the United States, which is to broaden the definition of who is likely to become a public charge.  One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States.  This proposal is still in draft format and has not yet become a rule. However, if and when it does become a rule, foreign nationals who rely on government benefits will be more at risk of being found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.

While the Trump administration’s proposed regulatory change is winding its way through bureaucratic channels, the State Department’s Foreign Affairs Manual (FAM), which is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad, has already made it easier to find visa applicants inadmissible under the public charge ground. The State Department can freely change the FAM at its choosing without even providing notice to the public or an opportunity to comment.

Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills.

Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government. See INA 213A(a)(1)(B).

The State Department at 9 FAM 302.8-2 (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new 9 FAM 3012.8-2(B)(2) provides:

  1. In General:
    1. In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case you must consider at a minimum the applicant’s:
      1. Age;
      2. Health;
      3. Family status;
      4. Assets, resources, and financial status; and
      5. Education and skills.
    2. These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.
    3. Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.

Under the new FAM guidance, a properly executed Form I-864 will only be considered “a positive factor in the totality of circumstances” even though it is a binding enforceable contract that allows the government agency to claim reimbursement of the cost of the benefit that was provided to the foreign national. Compare the new language with the January 19, 2017 version of the public charge definition in the FAM,  available at https://web.archive.org/web/20170119231252/https://fam.state.gov/FAM/09FAM/09FAM030208.html, which was just before the start of the Trump administration

The old 9 FAM 302.8-2(B)(3)(a.)(2) stated:

2. These factors, and any other factors thought relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.  As noted in 9 FAM 302.8-2(B)(2), a properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis.  Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where Form I-864 is not required.

See also the old 9 FAM 302.8-2(B)(2)(c):

 Effect of Form I-864 on Public Charge Determinations:  A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to overcome the INA 212(a)(4) requirements.  In determining whether the INA 213A requirements creating a legally binding affidavit have been met, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor – the affidavit is enforceable regardless of the sponsor’s actual intent and should not be considered by you, unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition.  If you have concerns about whether a particular Form I-864 may be “fraudulent”, you should contact CA/FPP for guidance.

Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). Pursuant to the old FAM guidance, the credibility of an offer of support from a person who met the definition of a sponsor and who had verifiable resources was not a factor. A DOS official at the Federal Bar Association’s Immigration Conference on May 18 and 19, 2018 in Memphis, TN confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations. By way of an example, according to the DOS official, if a co-sponsor has already executed other I-864s in the past, then that will be viewed as an adverse factor. (See Lily Axelrod’s excellent summary of the proceedings of the FBA immigration conference on the Cool Immigration Lawyers page on Facebook).

The I-864 has always been thought of as a binding contract between the sponsor and the government, and thus discrediting an I-864 that is otherwise non-fraudulent seems to undermine the contractual nature of the I-864. Even if a sponsor has executed other I-864s in the past, that should not result in an adverse credibility determination if the sponsor has sufficient documented income to meet 125% of the federal poverty guidelines based on his or her household size. Under the new FAM provisions, deeming a properly executed I-864 as overcoming public charge will no longer be the case.

Indeed, the change to the public charge definition in the FAM is causing additional havoc to otherwise eligible applicants for immigrant visas. Those who already got approved I-601A provisional waivers to overcome the 3 or 10 year bars under INA 212(a)(9)(B)(i) and have proceeded overseas to process their immigrant visas are now finding themselves being found inadmissible for likely becoming a public charge under INA 212(a)(4). If the visa applicant is found inadmissible for another ground other than under INA 212(a)(9)(B)(i), the I-601A waiver is revoked and the applicant has to file a new I-601 to again overcome the 3 or 10 year inadmissibility bars under INA 212(a)(9)(B)(i) even if the applicant is able to overcome the public charge ground by providing additional evidence. This can cause a delay of at least a year and result in uncertainty until the new I-601 is approved. One suggested way to ameliorate this unnecessary hardship is to issue an INA 221(g) letter requesting evidence to overcome the public charge ground rather than a flat out refusal under INA 212(a)(4).

The new FAM assessment of public charge also appears to run contrary to 8 CFR 213a.2(c)(2)(iv), which provides:

Remaining inadmissibility on public charge grounds. Notwithstanding the filing of a sufficient affidavit of support under section 213A of the Act and this section, an alien may be found to be inadmissible under section 212(a)(4) of the Act if the alien’s case includes evidence of specific facts that, when considered in light of section 212(a)(4)(B) of the Act, support a reasonable inference that the alien is likely at any time to become a public charge.

While it may be permissible under 8 CFR 213a.2(c)(2)(iv), to find public charge inadmissibility despite a proper affidavit of support, it has to be based on “evidence of specific facts” that “support a reasonable inference that the alien is likely . . . to become a public charge.” The new FAM guidance on the other hand considers a non-fraudulent I-864 only as a positive factor in the totality of circumstances, which includes the foreign national’s age, health, family status, assets, resources and financial status and education and skills.

Applicants should no longer assume when they process an immigrant visa at a US consulate that an I-864 will be deemed to overcome a public charge finding. The visa applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one.  Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable. Nothing should be taken for granted under the Trump administration, whose avowed objective is to restrict legal immigration to the United States. Until the administration can get its way in Congress by restricting immigration to only a select few under a Merits-Based immigration system, it will try every other way to restrict immigration, including expanding the definition of public charge.

David Isaacson

Those Who Cannot Remember the Past: How Matter of Castro-Tum Ignores the Lessons of Matter of Avetisyan

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Attorney General Jefferson B. Sessions III recently ruled in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), that immigration judges cannot under most circumstances “administratively close” cases before them (other than in a few instances where this is specifically authorized by regulation or court-approved settlement), even though the practice has been followed for many years.  Administrative closure had previously allowed immigration judges to avoid spending time on cases that were awaiting action by another agency or were otherwise lower-priority, but Attorney General Sessions has generally removed this option.  Instead, he has insisted that Immigration Judges must either resolve cases before them promptly, or grant a continuance “for a fixed period” where justified.  Matter of Castro-Tum, 27 I&N Dec. at 289.

The Attorney General’s decision in Castro-Tum has been the subject of a great deal of justified criticism from various sources, including AILA Secretary Jeremy McKinney, the American Immigration Council, the National Immigrant Justice Center, retired Immigration Judge Paul Wickham Schmidt, and Judge Ashley Tabbador, the president of the National Association of Immigration Judges.  All of that criticism is worthy of review.  In this blog, however, I want to focus on something which struck me about Castro-Tum that has not been addressed as much in the public criticism to date: the degree to which it ignored the rationale of the leading case it overturned.  By ignoring the reasons that justified the expansion of administrative closure in the first place, Attorney General Sessions has set the table for a potentially substantial increase in the immigration courts’ backlog of cases that may defeat whatever goal he believed the abolition of administrative closure would accomplish.

As Attorney General Sessions recognized in Castro-Tum, the use of administrative closure expanded when, in its 2012 decision in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the Board of Immigration Appeals held that cases could be administratively closed over the objection of one of the parties.  Notably absent from the Attorney General’s decision in Castro-Tum, however, is any discussion of the facts in Avetisyan that had led the BIA to come to this conclusion.

The respondent in Matter of Avetisyan had a U.S. citizen husband, who had naturalized during the first half of 2007 (after a January 29 hearing and prior to a June 14 one), and had previously filed an I-130 petition with USCIS to sponsor her for lawful permanent residence as his spouse.  This would have been the basis for the respondent to seek adjustment of status before the Immigration Judge, had the petition been approved.  As of September 2007, the respondent and her husband had been interviewed and had evidently provided all documents requested of them, but were waiting for USCIS to make a final decision on the petition.

Despite “five additional continuances” granted by the Immigration Judge, however, the I-130 petition at issue in Avetisyan was not adjudicated by USCIS.  “During the December 11, 2007, hearing, counsel for the DHS indicated that she did not have the file and that it was possibly with the visa petition unit.  On April 15, 2008, counsel for the DHS explained that the file was being transferred back and forth for each hearing before the Immigration Judge.”  Matter of Avetisyan, 25 I&N Dec. at 689–690.  That is, it appeared to be the repeated immigration court hearings themselves that were preventing the I-130 petition from being adjudicated: in preparation for each hearing, the file was being shifted from the USCIS unit which would have adjudicated the petition, to the attorneys representing DHS in the immigration court.  The Immigration Judge in Avetisyan, affirmed by the BIA, sought to avoid this conundrum by administratively closing the case, so that the I-130 petition could be adjudicated without the file being diverted to a DHS attorney in preparation for yet another hearing.  The case could then have been restored to the Immigration Court’s calendar once the I-130 petition had been adjudicated.

The Attorney General’s decision in Matter of Castro-Tum does not address this fact pattern at all, and does not suggest what an Immigration Judge or the Board ought to do under circumstances similar to those at issue in Matter of Avetisyan.  Continuances for a fixed period of time would not solve the problem if each continued hearing caused the file to be pulled away from USCIS petition adjudicators, just as appears to have occurred five times in Avetisyan before the Immigration Judge called a halt to the absurdity.  The cycle of continuances and file movement could literally go on indefinitely.

The alternative which this author suspects Attorney General Sessions might prefer, ordering the respondent removed because USCIS had not yet finished adjudicating a petition on his or her behalf, would be even more absurd, and unlikely to survive review in an appropriate Court of Appeals.  USCIS, after all, is a branch of DHS, the very agency which takes the prosecutor’s role before the Immigration Court to argue that someone should be removed.  In opposing a continuance under the sort of circumstances at issue in Avetisyan, DHS would be in the position of asking that someone be removed from the United States because they, DHS, had not yet deigned to adjudicate a petition filed on that person’s behalf.  Even in Avetisyan itself, DHS did not dare go that far (instead requesting a further continuance).  The possibility brings to this author’s mind Leo Rosten’s classic definition of chutzpah, relayed in the ABA Journal as “a person charged with killing his parents who pleads for mercy because he’s now an orphan.”

In a different context relating to motions to reopen, the Court of Appeals for the Second Circuit, in Melnitsenko v. Mukasey, rejected “the imposition of a mechanism by which the DHS, an adversarial party in the proceeding, may unilaterally block [that relief] for any or no reason, with no effective review by the BIA.”  The same objection would apply if DHS, a party to the removal proceedings, could seek to block relief and effect removal simply by delaying adjudication of an I-130 petition indefinitely.  But in the Avetisyan scenario, absent administrative closure, it may be that the only other option besides allowing this sort of deeply problematic unilateral blockade by DHS would be an indefinite cycle of continuances.

Philosopher George Santayana wrote in The Life of Reason that “Those who cannot remember the past are condemned to repeat it.”  Notwithstanding his expressed desire in Matter of Castro-Tum for more expeditious adjudication of immigration court cases, Attorney General Sessions may have put himself in the position described by Santayana.  He has abolished the tool used in Matter of Avetisyan to avoid an indefinite delay, without addressing, or seemingly remembering, the scenario which had caused that tool to be necessary in Avetisyan.  He may thereby have condemned himself, and the immigration court system, to repeat the sort of indefinite delays that gave rise to Avetisyan in the first place.

Cyrus Mehta

USCIS Improperly Blurs Distinction Between Violation of Status and Unlawful Presence for F, J and M Nonimmigrants

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U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo abruptly revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance is effective August 9, 2018, and after reading this blog, it is hoped that readers are sufficiently shocked and motivated to submit comments as the radical departure from previous policy will jeopardize the ability of many nonimmigrants, mainly foreign students, from returning to the United States for unwitting or inadvertent status violations.

There has always been a strict distinction between violating status and being unlawfully present in the United States. One can be in violation of status without being unlawfully present. Even if an F, J and M student dropped out of school or engaged in unauthorized work, he or she would be considered to have been in violation of status but not accruing unlawful presence. This is because an F, M and J nonimmigrant is usually admitted for a Duration of Status (D/S) rather than up to a certain date. An F, M or J can maintain status so long as they remain enrolled in the educational institution or participate in activities pursuant to that status, which is why they are admitted under D/S.  On the other hand, one who is the beneficiary of an approved H-1B or L nonimmigrant petition is admitted only up to the validity date of the petition. F, M and J nonimmigrants are not beneficiaries of prior approved petitions filed by sponsors.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios under the prior policy discussed below.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA 212(a)(9)(C)(i)(1).

The new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

By contrast, one admitted under an approved H-1B or L visa petition up to a certain date starts accruing unlawful presence after remaining beyond that date while a student who was admitted under D/S did not unless there was a violation of status finding by the USCIS or by an immigration judge. This holds true even with respect to a nonimmigrant admitted under a date certain visa. If the H-1B or L nonimmigrant violates status during the validity period of the admission, he or she will be in violation of status but will not accrue unlawful presence unless there is a formal finding by the USICS or an immigration judge.

The prior policy made more sense, and maintained the important distinction between maintenance of status and lawful or unlawful presence. The 3 and 10 year bars, or the permanent bar, are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under 212(a)(9)(B)(ii), which provides:

“….an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled”

The new policy blurs the difference between being out of status and unlawfully present. Unlawful presence ought to only trigger when one goes beyond an expiration date and not when there is a contestable violation of status. If a student in F status is in violation of that status, he or she can be placed in removal proceeding and may contest the allegation in the proceeding. If the Immigration Judge orders the person removed based on the violation, then the unlawful presence period may commence upon the order. Similarly, when one who is in F status applies for a change of status, and the USCIS finds that the applicant violated status, which the applicant may have been able to contest,  unlawful presence may commence after such a finding.

Under the new policy, a nonimmigrant in F, J or M status may have unwittingly violated that status by not pursuing a full course of study or engaging in an unauthorized activity, and may never get notice of it until much later. Even F-1 students in post-completion practical training could potentially be deemed later to have engaged in unauthorized activity, such as not working in an area consistent with their field of study or a STEM trainee being placed at a third party client site, which USCIS has without notice abruptly disfavored,   or if a school’s curricular practical training does not meet the USCIS’s subjective interpretation of whether the school was in compliance when it authorized such training.   In the meantime, this person would have started accruing unlawful presence and triggered the 10 year bar to reentry upon departing the United States. The dependent spouse would also unfairly accrue unlawful presence as a result of a status violation by the principal spouse. This individual may never get a chance to contest the violation of status after the fact. Unlawful presence should only trigger when there is clear notice of remaining beyond an expiration date of authorized stay in the United States and not when there is a contestable allegation of violation of status. An F, J or M nonimmigrant is now in a worse off position than say an H-1B nonimmigrant admitted under a date certain validity period. A violation of status by the H-1B nonimmigrant during the period of authorized stay would not trigger unlawful presence.  Even after 9/11, when immigration policies concerning students were tightened, we did not see such a cynical change in policy for students as now under the Trump administration where they may not know in time of a status violation only to later realize they have unwittingly accrued unlawful presence triggering the 10 year bar.

This is my preliminary reaction to the new unlawful presence policy relating to F, M and J nonimmigrants. There will be many other good arguments that will be developed and interested persons, along with those who will be potentially affected by 3 and 10 year bars,  are strongly urged to send in comments before June 11, 2018. The memo will take effect on August 9, 2018, but the abrupt change in policy without any proper rationale or justification also potentially makes it ripe for litigation.

Sophia Genovese

Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas will Eviscerate Due Process

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The Executive Office for Immigration Review, under the direction of the Department of Justice, announced last year that it had reopened the Collective Bargaining Agreement with the National Association of Immigration Judges (NAIJ) to include case completion quotas in the performance evaluations of Immigration Judges. On March 30, 2018, James McHenry, the Director of the EOIR, formally announced these metrics, which require IJs to complete at least 700 cases per year, have a remand rate of less than fifteen percent, and meet half of the additional benchmarks listed in the evaluation plan, which can be found here. As pointed out by the Association of the Bar of the City of New York, “this quota translates into each judge hearing testimony and rendering decisions almost three cases per day, five days per week, 52 weeks per year.” According to several retired IJs and Former Board of Immigration Appeals (BIA) Members, such quotas raise serious due process concerns and will result in a system that is less focused on justice and appearing “more like an assembly line.”

There are a number of issues with the EOIR case completion quotas. First, these quotas may force IJs to breach their ethical obligations. Specifically, the new completion quotas are tied to the financial incentives of IJs, where the performance evaluations affect IJs’ job security and eligibility for raises. IJs are not given life appointments and can be easily removed from the bench by the Attorney General if he finds them to not be meeting these performance thresholds. Thus, IJs may be encouraged to render hasty decisions in order to satisfy these case completion quotas and receive a good review (and thus a raise) instead of making decisions based on what is proper for the cases in front of them. Having such a financial incentive in the completion of a case arguably forces an IJ to violate 5 C.F.R. §§ 2635.401 to 2635.403,[i] which prohibits IJs from participating in proceedings where he or she has a financial interest. Additionally, IJs must be impartial in their decision-making under 5 C.F.R. § 2635.101(b)(8). It is hard for an IJ to remain impartial when pressured with impossible case completion standards especially when a case is meritorious but an IJ may not grant a continuance for legitimate reasons.

The case completion quotas also violate 8 C.F.R. § 1003.10(b), which provides: “In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgement and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” For example, an attorney may have been only recently retained by an asylum-seeker, and may request a continuance in order to gather and assemble evidence that is vital for the asylum-seeker’s claim. Under ordinary circumstances, an IJ would likely grant such a continuance as it would be considered proper under INA § 240(b)(4)(B) which affords a “reasonable opportunity…to present evidence” on one’s behalf. However, under the quota system, an IJ may feel pressure to deny the motion for continuance and may ultimately deny the asylum claim because the asylum-seeker was not afforded sufficient time to present their case. Such an outcome clearly violates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B) where the IJ is stripped of their independent decision-making authority where they feel pressured to quickly close out a case despite compelling reasons to grant a continuance, and where the asylum-seeker is not afforded a reasonable opportunity to be heard.

Another example is an individual placed in removal proceedings who is the intending beneficiary of a pending I-130 with USCIS. Typically, USCIS takes several months to adjudicate an I-130, and thus, attorneys for respondents file motions for continuance with the IJ until the USCIS has rendered a decision which will determine the respondent’s eligibility for relief from removal. Under the new case quota system, IJs will be less inclined to grant such continuances. This hypothetical similarly implicates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B), as described above. Moreover, the IJ’s denial of the continuance here would violate Matter of Hashmi, 24 I&N Dec. 785, 793-94 (BIA 2009) where the Board held that compliance with a IJ’s case completion goals “is not a proper factor in deciding a continuance request” where there is an meritorious pending I-130. We’ve previously blogged about AG Sessions’ stripping of judicial independence through his self-referral of  Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018), which can be found here.

The case completion quotas will also lead to an unprecedented number of BIA and federal court appeals. This would needlessly increase the BIA’s backlog and indeed affect the dockets of the federal court systems, resulting in the tremendous waste of taxpayer’s dollars where a proper decision could have been rendered at the IJ level. In addition, the number of remanded cases may exceed fifteen percent, and thus, the IJ would again fail to meet the performance metrics in their performance evaluation.

There is no denying that the Immigration Courts face tremendous pressure to address the ballooning backlog of cases. As of this writing, there are 692,298 pending cases in Immigration Courts across the country, with only approximately 330 judges to hear them. Advocates during the Obama-era consistently advocated for the appointment of more IJs to address the backlog. However, in the Trump-era, advocate are now skeptical of such a move where it is clear that this Administration seeks to deport as many people as possible. Indeed, the Department of Justice, headed by Jeff Sessions, has celebrated deportations under the Trump Administration. Such an emphasis on deportation, as opposed to fair adjudication of claims, undermines the independence and impartiality of IJs. The implementation of the DOJ/EOIR case completion quotas will undoubtedly lead to a rise in unfair hearings and erroneous deportations, which is exactly what this Administration wants. The appointment of Trump-supporting IJs will only exacerbate the problem.

For many years, the NAIJ has advocated for the creation of an Article I Immigration Court that is independent of the political whims of the Department of Justice. Under the current Administration, and in light of the newly imposed DOJ/EOIR performance quota metrics, these calls have never been more relevant. The Immigration Court system should not be used as a political tool of the executive branch to effectuate anti-immigrant policies. Rather, it should be an independent system that is committed to the fair adjudication and implementation of our immigration laws. The case completion quotas will undoubtedly undermine the integrity of our immigration system and should be vigorously challenged by IJs and practitioners.

[i] The author acknowledges that 5 CFR § 2635.402 directly implicates 18 U.S.C. 208(a), a criminal statute. This author suggests that the EOIR case completion quotas may jeopardize an IJ’s ethical obligations where their financial interests are directly and predictably impacted by blind adherence to such arbitrary quotas. Criminal liability for these actions, however, goes beyond the scope of this article.